97-010

        Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse her for the cost of her son's tuition in a private school during the 1996-97 school year. The hearing officer denied petitioner's request for relief on the grounds that the equitable considerations did not support the parent's reimbursement claim, at least in part, because of the high cost of the educational services given to the child. The appeal must be sustained.

        At the outset, I note that respondent's board of education has failed to answer the petition in this appeal. On February 28, 1997, an attorney of the New York City Law Department requested an extension of time to prepare and serve an answer. By correspondence dated March 4, 1997, the Office of State Review, noting that petitioner opposed respondent's request for additional time, informed respondent's attorney that an extension would not be granted. However, the attorney was advised that I could, in my discretion, consider an answer, if it was served and filed before I rendered this decision (see Application of a Child with a Disability, Appeal No. 96-53).

        Petitioner's son, who is currently six years old, began experiencing seizures at the age of thirteen months. He continues to have seizures, but takes medication to control them. As an infant, his speech and ability to walk were reportedly delayed. Petitioner obtained speech/language and occupational therapy for her son in an early home intervention program. At the age of three, he was referred to respondent's preschool committee on special education, which recommended a regular education nursery with special education itinerant teacher (SEIT) services (see Section 4410 [1][k] of the Education Law). The child attended the St. Thomas Moore Nursery School, where his language and skills reportedly improved.

        When tested at the age of 46 months in May, 1994, petitioner's son was found to be functioning cognitively and adaptively in the 17-29 month age range. He could identify the letters of the alphabet, but had difficulty labeling objects by use, identifying body parts, and categorizing objects. An additional psychological evaluation was conducted in February and March, 1995, when he child was 56 months old. Petitioner's son achieved an overall I.Q. score on the Stanford Binet Intelligence Scale of 62, placing him in the mildly retarded range. However, the psychologist indicated that the child's resistance to the testing may have resulted in a score which did not truly reflect his capabilities. The child's greatest relative strengths were in the areas of vocabulary knowledge, puzzle solving, and eye-hand coordination, while he was relatively weak in short-term memory skills. Behavioral profiles indicated that he could plan and strategize, but that he often tried to escape or avoid undesirable tasks. The psychologist opined that the child's overall developmental delays were a result of his seizure disorder. She recommended that the child be placed in an "inclusion" setting to afford him an opportunity to develop his language and social skills. An inclusion setting typically is a regular education class in which a child can receive appropriate special education services while interacting with age appropriate peers and working to achieve the goals and objectives of his or her individualized education program (IEP) (Application of a Child with a Disability, Appeal No. 96-62). The psychologist recommended that the boy be placed with younger, i.e., three to four-year old peers during the 1995-96 school year because of the level of his emotional development. She also recommended that he have the assistance of a full time assistant teacher to help him develop ways to remain on task, expand his comprehension, and moderate potential seizure activity, and that the child's regular education teacher be supported by a consultant special education teacher, psychologist, and related service providers. The psychologist further recommended that the behavior management program used at home should also be used in school environment to ultimately increase his use of language.

        The child came under the jurisdiction of the committee on special education (CSE) of Community School District 3, beginning with the 1995-96 school year. The CSE recommended that petitioner's son be classified as mentally retarded, and that he be placed in respondent's modified instructional services-IV (MIS-IV) program, with a 1:1 aide, and certain related services. However, the CSE reportedly did not have all of its required members when it made its recommendation. Although the boy was eventually offered a specific placement in P. 199, the placement offer was reportedly untimely.

        Petitioner did not accept the CSE's recommendation. In November, 1995, she unilaterally enrolled her son in a private educational program known as the Cooke Foundation for Special Education (Cooke). Petitioner requested that an impartial hearing be held to review the CSE's recommendation. She asked the hearing officer to order respondent to pay for the cost of her son's placement in the Cooke program. In a decision which was dated June 4, 1996, the hearing officer found that respondent had failed to offer the child an appropriate placement, and that Cooke had provided appropriate special education services to the child during the 1995-96 school year. He further found that equitable considerations supported petitioner's claim for reimbursement. Relying upon the decisions in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993), the hearing officer ordered respondent to reimburse petitioner for the cost of her son's tuition and related services in the Cooke program. He also urged the CSE to make a timely and appropriate recommendation for the child's educational placement during the 1996-97 school year.

        Respondent did not appeal from the hearing officer's decision. At the hearing in this proceeding, the CSE representative of Community School District 3 acknowledged that the CSE had not conducted an annual review of the child, and had failed to recommend a program or placement for the child during the 1996-97 school year. The child has remained in the Cooke program. On September 25, 1996, petitioner requested that an impartial hearing be held because of the CSE's failure to recommend an educational placement for her son.

        The hearing was held on November 13, 1996. Both parties acknowledged that the boy was appropriately classified as mentally retarded. Respondent further acknowledged that the CSE had failed to perform its duty to recommend a placement for the child. The child's consultant special education teacher in the Cooke program testified that the boy was enrolled in a regular education prekindergarten class of fourteen children, some of whom had been in his class during the prior school year. The consultant teacher indicated that petitioner's son was the only child with an identified disability in the class, which was located in the Riverside Weekday School in Manhattan. The child had the services of a 1:1 aide. In addition to the regular preschool curriculum which was modified to meet his needs, the boy also received occupational therapy twice per week, speech/language therapy once per week, and counseling once per week. Petitioner's son was also assisted by a "behaviorist", i.e., a psychologist who worked with the boy twice per week to increase his attention span, and to improve his ability to sequence things and events, and to transition between activities. The behaviorist was also helping the child to improve his reading and mathematics skills.

        The consultant teacher further testified that the child's performance was inconsistent after he had suffered a seizure, and that he was distractible and impulsive. She asserted that the child's ability to remain on task had improved, and that he had made certain academic gains, such as being able to write the four letters of his first name in proper sequence and in a straight line. The teacher testified that the boy could identify all of the letters in the alphabet, as well as some basic sight words. He could count up to twenty, and was able to add the number one to other numbers. The teacher testified during the 1995-96 school year the child had generally engaged in parallel activities with his classmates and that he was now directly interacting with his peers, and had formed some friendships with his classmates. Petitioner introduced into evidence an IEP for the 1996-97 which had been prepared by Cooke in the Spring of 1996. The consultant teacher testified that the child had already achieved some of his IEP objectives by November, 1996.

        Respondent did not dispute any of the consultant teacher's testimony, except to question if the boy was truly in an inclusion program because he was older than the other children in his class. Instead, it raised the issue of the appropriateness of the cost of the services which petitioner had obtained for her son in the Cooke program. Petitioner testified that she had contracted with Cooke, in the amount of $21,500, and that Cooke had in turn contracted with the Riverside Weekday School for certain services for the boy. The sum which she was obligated to pay Cooke included the services of the boy's regular education teacher and his behaviorist, but it did not include the cost of the boy's individual aide. Petitioner further testified that respondent was bearing the cost of the aide through its Related Service Authorization (RSA) program. Respondent was also paying for the boy's related services, which cost approximately $5,782 with RSA vouchers. Petitioner transported her son to school. The CSE representative asserted that respondent should not have to pay for the child's tuition because it would be "double-dipping", or that the cost of the tuition plus the RSA services was excessive. He further argued that petitioner should have contacted the CSE regarding the latter's lack of action on behalf of her son.

        The hearing officer in this proceeding rendered her decision on December 20, 1996. She found that respondent had failed to meet its burden of proof with regard to its duty to offer the child an appropriate educational placement for the 1996-97 school year, which is the first of the three criteria for tuition reimbursement under Burlington, supra. The hearing officer further found that petitioner had met her burden of proof with respect to the second Burlington criterion, i.e., whether the services which she had obtained for him at Cooke met his special education needs, while nevertheless expressing doubt about whether any specific feature of the Cooke program had contributed to the child's educational gains. Instead, she suggested that his progress was largely attributable to the related services which respondent paid for with RSA vouchers. The hearing officer then considered the third and final Burlington criterion, i.e., whether equitable considerations supported petitioner's claim for reimbursement. She noted that petitioner could have contacted the CSE before asking for a hearing, but reasoned that petitioner's failure to do so had not relieved the CSE of its obligation to make an appropriate and timely recommendation for the boy. The hearing officer found that the evidence suggested that petitioner had, in any event, intended to keep her child in the Cooke program.

        With regard to the cost of the boy's tuition in the Cooke program, the hearing officer concluded that the child was educationally benefitting from the services which respondent was providing through its RSA vouchers, and that it would be double-dipping for petitioner to receive reimbursement for the cost of the boy's tuition.

        Petitioner challenges the hearing officer's decision with regard to the issue of whether equitable considerations support her claim for tuition reimbursement. She contends that the hearing officer's determination that the Cooke program did not meet the child's special education needs was unsupported by the record, and it was inconsistent with her determination that petitioner had prevailed with respect to the second of the three Burlingtoncriteria. I agree with petitioner that the hearing officer's reservation about the efficacy of the Cooke program's services, which she articulated while determining whether equitable considerations supported petitioner's claim for reimbursement, are clearly inconsistent with her finding that the services which petitioner had obtained for her son at Cooke were appropriate. Respondent has not appealed from that finding, which I may not set aside (34 CFR 300.509). I also agree with petitioner that the record demonstrated that her son was provided with a modified curriculum in the least restrictive environment, and that he was making educational progress in that private school placement.

        With regard to the third Burlington criterion, I must first note that the fact that a parent prefers to have his or her child educated in a private school is not per se dispositive of the parent's right to obtain tuition reimbursement (Application of a Child with a Disability, Appeal No. 96-53). I find that there is nothing in the record to suggest that petitioner did not cooperate with respondent's CSE.

        The remaining issue to be determined is whether the hearing officer's finding that the award of tuition reimbursement would be financially excessive is supported by the record. The reasonableness of the cost of the services which a parent has obtained for his or her child must be considered in determining whether equitable considerations support the parent's claim for reimbursement (Florence County School District Four v. Carter by Carter, supra). Where the costs of the private services are excessive, a hearing officer may properly limit a parent's claim for reimbursement (Application of a Child with a Disability, Appeal No. 96-8). I note that in a prior decision which also involved the Cooke program (Application of the Board of Education of the City School District of the City of New york, Appeal No. 96-11), I found that the hearing record was inadequate to support a finding that the private school services were excessive. I am compelled to reach the same conclusion in this proceeding. However valid respondent's concern about excessive costs may have been, it was incumbent upon it to submit evidence at the hearing to support its point. It failed to do so. Therefore, I must annul the hearing officer's decision.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled, and;

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her son's tuition in the Cooke program during the 1996-97 school year, upon presentation by petitioner to respondent of proof of her expenditures for such purpose.